“(5) The Secretary of State may by order provide that in such cases as may be prescribed by or determined under the order— (a) anything which would (apart from the order) be one dwelling shall be treated as two or more dwellings; and (b) anything which would (apart from the order) be two or more dwellings shall be treated as one dwelling.”
“2. In this Order— ‘the Act’ means theLocal Government Finance Act 1992 ; … ‘multiple property’ means property which would, apart from this Order, be two or more dwellings within the meaning ofsection 3 of the Act ; ‘single property’ means property which would, apart from this Order, be one dwelling within the meaning ofsection 3 of the Act ; ‘self-contained unit’ means a building or a part of a building which has been constructed or adapted for use as separate living accommodation.” 3. Where a single property contains more than one self contained unit, for the purposes of Part I of the Act, the property shall be treated as comprising as many dwellings as there are such units included in it and each such unit shall be treated as a dwelling. 4. (1) Where a multiple property— (a) consists of a single self contained unit, or such a unit together with or containing premises constructed or adapted for non-domestic purposes; and (b) is occupied as more than one unit of separate living accommodation. the listing officer, may, if he thinks fit, subject to paragraph (2) below, treat the property as one dwelling. (2) In exercising his discretion in paragraph (1) above, the listing officer shall have regard to all the circumstances of the case, including the extent, if any, to which the parts of the property separately occupied have been structurally altered.”
“In this case, the parts of the property separately occupied (i.e. the individual rooms) have not been structurally altered at all. This points in favour of aggregation. They have clearly been constructed not for completely separate living but for occupation as part of a communal group within each flat. That again points in favour of aggregation. Finally, the occupiers are relatively transient. Whilst they satisfy the test for rateable occupation (as will always be the case in any situation where the discretion to aggregate is engaged) they characteristically live in the same room for one year or less. This points strongly in favour of a decision to aggregate as otherwise the administration of hundreds of different council tax accounts will be complex and onerous. There are no factors of which we are aware that point away from a decision to aggregate. It is therefore clear on the merits that the discretion should be exercised. However, in this case there is also a further overriding consideration, namely the need for consistency of decision making and equality of taxation. This principle means that a decision to aggregate is the only lawful decision. A decision to refuse to aggregate will be legally flawed and subject to challenge in the courts. This is because in multiple other equivalent properties the decision to aggregate has been exercised. If it is not exercised at Howard Gardens then that property will bear a disproportionately high tax burden in comparison with its nearby competitors. This is so basically unfair that we think a court would readily intervene to correct the situation if you do not.”
“Layout Prime Student Living, Howard Gardens, Cardiff CF24 0FA is a purpose built block of student accommodation. The LO has not inspected and the only plan I’ve seen is a marketing plan which doesn’t appear to be to scale. The plan does not show ensuite facilities within each room, whilst the marketing particulars say each bedroom has its own private bathroom. There are 391 bedrooms which are spread over 61 ‘cluster flats’. Each cluster has some shared space and there are additional shared facilities on the ground floor. (Reception, games area, property team office, cinema room, lounge area, study room, private dining room, gym and bike store) Breakdown of clusters / rooms is: • 4 bed – 5 • 5 bed – 15 • 6 bed – 20 • 7 bed – 8 • 8 bed – 3 • 9 bed – 7 • 11 bed – 3 Most of the clusters give the impression from the plan of being a long corridor with rooms and a shared kitchen at one end. Discussion Following counsel’s advice and much internal discussion, the CTM PN6 was redrafted. The PN lists a number of considerations and indicates whether they would be more or less likely to point towards aggregation. It is stressed there is no ‘tick box’ exercise and you must look at all the circumstances of the case. Looking at the 18 points in the table:”. • 4 bed – 5 • 5 bed – 15 • 6 bed – 20 • 7 bed – 8 • 8 bed – 3 • 9 bed – 7 • 11 bed – 3 Discussion •. Line 2: “Majority of clusters are 5 or more” •. Line 3: “N/A – purpose built” •. Line 6: “None” •. Line 7: “All” •. Line 9: “Appears small within clusters, some additional shared space on the ground floor” •. Line 10: “One within cluster” •. Line 11: “None within cluster”. 25. Mr Hickman’s conclusion was as follows: “My view is the LO shouldn’t aggregate any of the clusters. There is an argument that the smaller clusters could be aggregated. The obvious difficulty is where do you draw the line? My view on this is I look at the whole property; its [sic] purpose built and the majority of the clusters shouldn’t be aggregated. My discretion is then not to aggregate any. In my view, the comparables mentioned need to be reviewed as do other student blocks in Cardiff.”
“There is no connection with the Landlord or Prime Student Living with the above sites [i.e. the ‘comparable’ properties], however there is a working relationship between these sites in so far as the landlords and/or managing agents discuss common issues. When the 391 bills were received for each room, following enquiries West Wing confirmed to our client that they had also been originally billed per individual room but that following discussions direct with the Council this was reversed (and the rooms apparently ‘aggregated’) such that each flat is shown as a single dwelling on the valuation list. It was understood by our client that none of the other sites dealt with the VOA, although after initial approach the Council referred our client to the VOA to seek to address the issue.”
“It is worth mentioning that the local office provided the information in the form of plans, but no tenancy agreements were available to verify terms of occupation of the individual rooms or cluster flats. It is normal practice to consider fact and degree in every circumstance, whilst private or University owned property including tenancy agreements can affect the final decision. Ladies Hosiery and Underwear Ltd v West Middlesex Assessment Committee (1932) should be noted that correctness should not be sacrificed for the sake of conformity. The review of the original decision surrounding comparables is therefore difficult based on whether sufficient research has been undertaken to support individual hereditaments of the rooms; and then aggregation taking place of the clusters. No evidence has been seen that specifically relates to the decision on aggregation or not has been considered. … Summary of Comparables It can be seen from the comments above that the Listing Officer’s discretion to apply aggregation has happened on every occasion, except Howard Gardens. Decisions regarding the bandings (except Howard Gardens) were undertaken in 2016, 2017 and 2019. In terms of decisions, they are relatively recent which seems to be the decision of the local office, although the reasoning for the decision to aggregate is limited on the information available. Whilst it could be said that the comparables set a tone of aggregating cluster flats within the locality, I remain of the opinion that properties such as Howard Gardens should not be aggregated based on previous decisions within the locality.”
“Howard Gardens is correct - 391assessments – Distinguished from comparables in that no independent living for 1 / 2 / 3 beds with minimal 4 beds. Comps – Everything 5 rooms or more not aggregated = 1,222 alterations required 5 bedroom cut-off point – Will not be aggregated Agreed with Steve”
“I am instructed that the Respondent Listing Officer in the above proceedings has now reviewed the additional evidence provided by your client through your email sent on22 May 2023 . The LO’s conclusion is that the hereditaments should not be aggregated pursuant to the discretion contained in article 4 of theCouncil Tax (Chargeable Dwellings) Order 1992 . Please find below a brief note on the said decision: ‘Howard Gardens is a large, purpose built block with student accommodation arranged in ‘cluster’ flats. There are 391 rooms in ‘clusters’ of 4 to 11 rooms. Each cluster has a kitchen and all the rooms are en-suite. Additionally, there are common facilities in the block for all residents; mainly on the ground floor. The tenancy/licence agreements indicate each room is a separate hereditament and so each room is a single ‘section 3’ dwelling under the LGFA92. I think this is accepted by the taxpayer. As the starting point is separate ‘section 3’ dwellings, the remaining question is should the LO engage article 4 of the CD092 (SI 1992/549). The LO’s conclusion is no. No single point is determinative but factors weighing against aggregation include: • The number of rooms per cluster • The ratio of shared space within each cluster • Each room being en-suite with no other WC facilities within the cluster. This decision is in line with published VOA instructions in the Council Tax Manual — Practice note 6.’” ‘Howard Gardens is a large, purpose built block with student accommodation arranged in ‘cluster’ flats. There are 391 rooms in ‘clusters’ of 4 to 11 rooms. Each cluster has a kitchen and all the rooms are en-suite. Additionally, there are common facilities in the block for all residents; mainly on the ground floor. The tenancy/licence agreements indicate each room is a separate hereditament and so each room is a single ‘section 3’ dwelling under the LGFA92. I think this is accepted by the taxpayer. As the starting point is separate ‘section 3’ dwellings, the remaining question is should the LO engage article 4 of the CD092 (SI 1992/549). The LO’s conclusion is no. No single point is determinative but factors weighing against aggregation include: • The number of rooms per cluster • The ratio of shared space within each cluster • Each room being en-suite with no other WC facilities within the cluster. This decision is in line with published VOA instructions in the Council Tax Manual — Practice note 6.’”
“Aggregation is a discretion on the LO and the wording in the legislation [Chargeable Dwellings Order 1992 (SI1992/549) Article 4] doesn’t really help. Even within the CT tech leadership there are a range of views and all cases are very fact specific. The VOA published guidance [Practice Note 6] sets out a table of items to consider; this was recently updated following discussions with Sols and legal advice from counsel. In the case of Howards Gardens, the SMEs feel it is inappropriate to aggregate any of the units. There are several points leading to this including the number of cluster flats with larger numbers of bedroom, the shared facilities, the size of the shared living space within each cluster and the overall layout with no single rooms. The SMEs then reviewed the ‘comparables’ mentioned and the striking thing to note is that all the comparables mentioned have single room studios whereas the subject property does not. The Fitzalan is very different with mainly single studios. The 2 bed flats, according to their website, are not en-suite. The 2 bedrooms share a kitchen area and a single bathroom. It is appropriate to aggregate the 2 bed flats here. The other 4 blocks are similar to each other with a mix of single studios (or bedsits) and ‘cluster flats’, where a number of en-suite rooms share a kitchen. The SMEs feel, on balance, the individual flats within a block need to be looked at and this may lead to some flats being aggregated within the block rather than a blanket all or nothing approach. Where there are fewer bedrooms, it seems more appropriate to aggregate. The question then is where to draw the line and we think all clusters with 4 or less rooms should be aggregated. Those with 5 or more should be assessed as separate rooms. This leads to one issue within Howard Gardens; there are 5 four bed flats. Given the small percentage of the total accommodation and the difference in overall accommodation, the SMEs feel it is still a rational decision not to aggregate any units having regard to all circumstances of the case. This will result in action required to ‘split’ all the cluster flats with 5 and more rooms.”
“Where a building which was constructed or has been adapted for the purposes of a single dwelling-house, or as to part thereof for such purpose, and as to the remainder thereof for any purpose other than that of a dwelling or residence, is occupied in parts, the rating authority or the assessment committee in preparing, or revising a draft valuation list, or in amending a current valuation list may, if they think fit, having regard to all the circumstances of the case, including the extent, if any, to which the parts separately occupied have been severed by structural alterations, treat the building or any portion thereof as a single hereditament, and a building or portion of a building so treated as a single hereditament shall, for the purposes of rating, be deemed to be a single hereditament in the occupation of the person who receives the rents payable in respect of the parts.”
“It applies where the building was constructed or adapted to serve as a single dwelling-house, or as a single dwelling-house with business or other premises attached, e.g., a shop with a dwelling-house over it; but it does not apply where the house has been constructed to serve as two or more dwelling-houses, for example, as ordinary flats. Structural alterations which have made the building into a set of separate self-contained flats may prevent the application of the section as a result of the direction to have regard to ‘the extent, if any, to which the parts . . . have been severed by structural alterations.’ Indeed it is possible that the direction is intended as a warning that if the severance is complete, there is no power to exercise the discretion.”
“In our view, the Criminal Injuries Compensation Board case[1999] 2 AC 330 points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between ‘ignorance of fact’ and ‘unfairness’ as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that ‘objectively’ there was unfairness. On analysis, the ‘unfairness’ arose from the combination of five factors: i) An erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); ii) The fact was ‘established’, in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; iii) The claimant could not fairly be held responsible for the error; iv) Although there was no duty on the Board itself, or the police, to do the claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; v) The mistaken impression played a material part in the reasoning.”
“All of the kitchens in each flat at the Property increase in size with every additional tenant, the smallest being in respect of 4 room cluster and our largest being the 11 room cluster. There is always a seat at the dinner table and a seat on a sofa for every occupant of a bedroom in the cluster for the flat to enable them all to socialise in the space at the same time. The amenities in the kitchen also increase with size, so the smallest kitchens have 1 oven whereas the largest have over 3 ovens.”
“A guest house which has been converted into a 14 bed HMO. All the rooms have en-suite facilities, there is a shared kitchen and two shared living/dining rooms. All the rooms are let on ASTs. From the circumstances in the case, it would not be appropriate for the LO to aggregate.”
“I agree with Lord Carnwath JSC’s analysis of the relevant legal principles. In public law, as in most other areas of law, it is important not unnecessarily to multiply categories. It tends to undermine the coherence of the law by generating a mass of disparate special rules distinct from those applying in public law generally or those which apply to neighbouring categories. To say that a decision-maker must treat persons equally unless there is a reason for treating them differently begs the question what counts as a valid reason for treating them differently. Consistency of treatment is, as Lord Hoffmann observed in Matadeen vPointu[1999] 1 AC 98 , 109 ‘a general axiom of rational behaviour’. The common law principle of equality is usually no more than a particular application of the ordinary requirement of rationality imposed on public authorities.”
“It is a vital principle of the law of rating that each hereditament should be independently assessed. … If, then, the Assessment Committee is to begin with an independent valuation of the particular hereditament, the position of that hereditament in regard to the test of gross value imposed by the statute is the first question to be considered, and if the only evidence before the Court, and given by the occupier of the hereditament, is that£325 is the rent which the hypothetical tenant would be expected to pay for a tenancy of that hereditament in statutory terms, there is an end of the case. But it may be that, regarding the hereditament in question alone, the Assessment Committee is in doubt as to the hypothetical statutory rent. In such a case it is admissible to tender evidence of the assessment of another hereditament said to be comparable, and to do so without asking, in the alternative, that such second assessment should be varied, and therefore without giving notice to the occupier of the second hereditament … But while such evidence is admissible in chief, it is generally of very little value. Banices LJ gives the reason in Pointer’s case[1922] 2 KB 476 : ‘With regard to the first objection, that as to the admissibility of the evidence, Salter J in his judgment in the Court below, speaking of rents actually paid for similar premises in the neighbourhood, said: “Certainly it has been the practice both in rating Courts and in compensation Courts to discourage evidence of this kind where it is tendered in chief,” and in that respect my experience has agreed with that of the learned judge. But the reason why it has been discouraged is not because it is inadmissible, but because there are so many circumstances to be taken into consideration that comparisons of that kind are practically valueless. And if evidence of the actual rent paid for the premises sought to be compared is valueless, much more so must be evidence as to their rateable value. But although evidence of the rateable value of such other premises is in the majority of cases of but little value, I agree with the Deputy Recorder and the Divisional Court that it cannot as matter of law be regarded as inadmissible.’ While, therefore, the Assessment Committee and Quarter Sessions cannot exclude such evidence, it is not of much weight, and especially of practically no weight when they have direct and uncontradicted evidence as to the hypothetical statutory rent of the hereditament to be assessed. The appellants here, however, say that besides the principle of independent valuation, there is another vital principle: that as between different classes of hereditaments, and as between different hereditaments in the same class, the valuation should be fair and equal. I agree, but in my view there is a third important qualification, that the assessing authority should not sacrifice correctness to ensure uniformity, but, if possible, obtain uniformity by correcting inaccuracies rather than by making an inaccurate assessment in order to secure uniform error.”
“For my part, I have no doubt that the same principles must be applied in connection with drainage rates, but I do not regard the judgment of Scrutton LJ as in any way discounting the desirability of obtaining equality and fairness where that is possible without departing from the accurate application of any settled formula provided for making the assessment.” “Could the board, in those circumstances, do what has been done in this case? For my part, I am quite satisfied that the board must make their assessment in the light of circumstances prevailing in 1958; but, in 1958 on the facts of this case the great majority, if not all, other ratepayers had a figure representing the annual value of the premises in 1958, which figure was derived from a valuation made in 1936. I find nothing inconsistent in the drainage board approaching this problem on the footing that for the purpose of property assessed under Schedule A the annual value may properly be arrived at on the basis of assessment in 1936, and that the same considerations might be applied to premises under their control. Indeed it seems to me when one remembers the importance underlying all rating problems of achieving fairness, if possible, that the board is permitted to have regard to such considerations, and when faced in 1958 with the fact that all or almost all its existing hereditaments have their values assessed on their 1936 standard that the board should say: ‘It is fair and right and it is the best solution which we, under our powers can achieve if we in 1958 apply the same standard of valuation which is applicable to all the remaining hereditaments in the area.’ Bearing in mind that there is nothing in the Ladies Hosiery case which excludes fairness, if the board or the justices thought it right to take account of fairness and equality, I can find no error of law in their so doing.”
“The review of the original decision surrounding comparables is therefore difficult based on whether sufficient research has been undertaken to support individual hereditaments of the rooms; and then aggregation taking place of the clusters. No evidence has been seen that specifically relates to the decision on aggregation or not has been considered.”